[G.R. No. 1767. January 21, 1905. ]
THE UNITED STATES, Complainant-Appellee, v. GAVINO GARCIA, Defendant-Appellant.
Arcadio del Rosario for Appellant.
Solicitor-General Araneta for Appellee.
1. CRIMINAL LAW; ROBBERY. — The defendant, having taken possession of personal property with intimidation of the person of the owner, is guilty of the crime of robbery as provided for and punished in paragraph 5, article 503, of the Penal Code.
2. ID.; ID.; NOCTURNITY. — Although the robbery has been committed at night, yet, when it is evident that the defendant did not choose purposely the night to perpetrate the crime, this circumstance can not be considered as aggravating the penalty thereof.
D E C I S I O N
The Court of First Instance has been sentenced the defendant to five years’ imprisonment for the crime of robbery.
The evidence in the record fully show the guilt of the defendant. The robbery was committed with intimidation and should be punished in accordance with paragraph 5 of article 503 of the Penal Code, as it is not covered by any of the four previous paragraphs of the said article.
There is no aggravating circumstance present in the commission of the crime to be appreciated, for, although the robbery was committed at night, it seems evident, by what is drawn from the evidence in the record, that that circumstance was not purposely sought by the accused, in asmuch as his meeting with Alejandro Masa and Julian Miguel, whom he robbed of the sums of 2 and 8 pesos, respectively, was merely accidental.
The penalty prescribed by law should therefore be imposed in its medium degree upon the accused; and this penalty being that from presidio correccional to presidio mayor in its medium degree, it is clear that the sentence of five years’ imprisonment imposed upon the said accused, and from which he appealed, falls within the said degree.
Therefore, we affirm the said judgment against the accused, it being understood that it is to be of five years of prision correccional instead of prision, and sentence him moreover to the restitution of the unrecovered amount of 2 pesos to Alejandro Masa, and to the payment of the costs of both instances. So ordered.
Arellano, C.J., Torres, Johnson and Carson, JJ., concur.